Category Archives: Free Speech

The Story Of Our Age

Jeffrey Goldberg is the editor of the Atlantic, one of the more credible and informative publications I read, and he recently transmitted an email to subscribers titled “Notes from the Editor-in-Chief.” I am going to take the liberty of quoting large portions of that message, because I entirely agree with him about the nature and extent of the danger we face.

Last week, a Michigan congresswoman whose existence had not yet entered the rest of the country’s consciousness credited Donald Trump with having “caught Osama bin Laden,” among other terrorists. It is difficult to forget that night in 2011 when Barack Obama told the world that, on his orders, a team of Navy commandos had killed the al-Qaeda leader. But Representative Lisa McClain, a first-term member of Congress, showed that, with effort, and with a desire to feed Trump’s delusions and maintain her standing among his supporters, anything is possible.

In ordinary times, McClain’s claim would have been mocked and then forgotten. But because these are not ordinary times—these are times in which citizens of the same country live in entirely different information realities—I put her assertion about bin Laden on a kind of watch list. In six months, I worry, we may learn that a provably false claim made by a single unserious congressional backbencher has spread into MAGA America, a place where Barack Obama is believed to be a Kenyan-born Muslim and Donald Trump is thought to be the victim of a coup.

Disinformation is the story of our age. We see it at work in Russia, whose citizens have been led to believe the lies that Ukraine is an aggressor nation and that the Russian army is winning a war against modern-day Nazis. We see it at work in Europe and the Middle East, where conspiracies about hidden hands and occult forces are adopted by those who, in the words of the historian Walter Russell Mead, lack the ability to “see the world clearly and discern cause and effect relations in complex social settings.” We see it weaponized by authoritarians around the globe, for whom democracy, accountability, and transparency pose mortal threats. And we see it, of course, in our own country, in which tens of millions of voters believe that Joe Biden is an illegitimate president because the man he beat in 2020 specializes in sabotaging reality for personal and political gain. This mass delusion has enormous consequences for the future of democracy. As my colleague Yoni Appelbaum has noted, “Democracy depends on the consent of the losers.” Sophisticated, richly funded, technology-enabled disinformation campaigns are providing losers with other options.

The Atlantic has joined with the Institute of Politics at the University of Chicago, and the two entities staged a conference focusing upon disinformation of all sorts. (The conference is available online.) The Institute of Politics was founded by David Axelrod, who has expressed his opinion that the “future of this country—and of our democratic allies around the world—depends on the ability and willingness of citizens to discern truth from falsehood.”

Goldberg was forthright in admitting to the nature of the challenge disinformation poses for “big-tent” magazines like the Atlantic.  He reiterated his belief that citizens of democracies require  a wide variety of views and opinions, and insisted that

We strive for nonpartisanship at The Atlantic, and we aim to publish independent thinkers and a wide variety of viewpoints. But this most recent period in American history has presented what might be called “both-sides journalism” with serious challenges—challenges that have prevented this magazine from publishing many pro-Trump articles. (After all, our articles must pass through a rigorous fact-checking process.)

Long-term, the emergence of our citizens from the Tower of Babel we currently inhabit will require a co-ordinated effort. My own repeated calls for more and better civics education–leading to greater levels of civic literacy– obviously point to an important part of that effort, but civics education alone cannot address the economic and psychological insecurities that make so many Americans receptive to the lies and hatreds being promoted by would-be autocrats and their enablers.

I don’t know what it would take–what policies could impose at least a minimum of coherence and integrity to the Wild West that is our current information environment without sacrificing the First Amendment– but as Goldberg  and Axelrod clearly understand, figuring that out is obviously job number one.

I’m on vacation without reliable Internet access, but when I get home, I intend to click through and watch that conference….

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Filters And Lies

I know I carp constantly about the degree to which propaganda and conspiracy theories have displaced credible information, with the result that today’s Americans occupy different realities. It’s easy to blame social media for the reach of disinformation and lies–and social media does bear a significant amount of the blame–but research also illuminates the way propaganda has changed in the era of cable news and the Internet.

That research has identified two modern mechanisms for eroding social trust and constructing alternate realities. One –to quote Steve Bannon’s vulgar description–is to “flood the airways with shit.” In other words, to produce mountains of conflicting “news” along with lots of “shiny objects.” The faux “news” confuses; the shiny objects distract. Citizens don’t know what to believe, what parts of the fire hose of information, disinformation, and outright invention they can trust. They either accept a particular storyline (chosen via confirmation bias) or opt out.

But it isn’t simply the fire hose approach that has eroded our common realities. These days, when people get most of their news from partisan sources, all too often they simply don’t get news that is inconsistent with partisan biases.

A recent, widespread report illustrates that technique. As the lede put it, “The problem with Fox ‘News,’ the cable TV channel, isn’t just what it is — it’s also what it isn’t.” It was a fascinating new study in which arch-conservative Fox TV viewers were paid to watch CNN for a month.

The study, titled “The manifold effects of partisan media on viewers’ beliefs and attitudes: A field experiment with Fox News viewers,” was performed by a pair of political scientists: David Broockman, who teaches at UC-Berkeley, and Joshua Kalla, who teaches at Yale.

 According to Broockman and Kalla, when these Fox viewers watched CNN, they heard about all sorts of things Fox wasn’t telling them. They processed that information. They took it in. They became more knowledgeable about what was really going on in the United States.

The individuals who took part in the experiment didn’t change their political leanings or partisan preferences,  but the experience did alter their perceptions of certain key issues and political candidates.

The study authors differentiated between “traditionally emphasized forms of media influence,” like agenda setting and framing, and what they call “partisan coverage filtering”: the choice to selectively report information about selective topics, based on what’s favorable to the network’s partisan side, and ignore everything else.

The article emphasized what the author called the “real problem” with Fox : its viewers aren’t just manipulated and misinformed — they are left ignorant of much of the news covered by more reputable outlets. Fox gives them a lot of “news-like” information, but they don’t learn about things like Jared Kushner getting two billion dollars from Saudi Arabia.

That conclusion reminded me of another research project a couple of years ago. People were asked to identify their primary news sources and then quizzed on things currently in the news. Those who named Fox as their preferred news source knew less than people who didn’t watch any news from any source.

Lest you think that “filtering” of this sort is a tactic exclusive to the Right, when one of the authors of the research study was interviewed on CNN, he noted that CNN, too, filtered its reporting.

CNN’s Brian Stetler interviewed Joshua Kalla, one of the co-authors of the study, and they had the following exchange:

“You call this partisan coverage filtering,” Stelter told Kalla. “And basically, you’re proving what we’ve sensed for a while, which is that Fox viewers are in the dark about bad news for the GOP.”

Kalla confirmed the Fox News coverage model but put a stop to the victory lap: “On the flip side, CNN engages in this partisan coverage filtering as well… For example, during this time, the Abraham Accords were signed, and these were the agreements where Israel, the UAE and Bahrain signed a major peace agreement. And we see that Fox News covered this really major accomplishment about 15 times more than CNN did. So we established both networks are really engaging in this partisan coverage filtering. It’s not about one side, it’s about the media writ large.”

To be fair, CNN is apparently less culpable in this regard than Fox..

America’s ugly politics is obviously attributable to a lot more than the country’s media environment, even if you throw in the very divisive algorithms used by social media. (After all, the KKK didn’t use the Internet.) But it’s hard to avoid the conclusion that both mass media and social media have contributed disproportionately to our loss of a common reality.

As always, the questions are: what policies might make things better? And can we pass those policies once they are identified?

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A New Way Of Reporting

It’s called “Open source intelligence,” and we’re learning about it thanks to Vladimir Putin and his savage assault on Ukraine.

Here’s the lede from the linked Time Magazine report

The ability of anyone with a phone or laptop to see Russia’s invasion of Ukraine unfold in almost real time—and to believe what they’re seeing—comes to us thanks to the citizens operating what’s known as open-source intelligence (OSINT). The term is shorthand for the laborious process of verifying video and photographs from Ukraine by checking everything about the images, establishing what they show, and doing all this work out in the open, for all to see.

The article focused on one of the individuals who pioneered this effort,  Eliot Higgins , who had what was described as a “boring office job in the U.K. ” during the war in Syria. In addition to examining social media posts, he also analyzed YouTube videos  that had been uploaded from phone cameras .

Although he had no training as a journalist, he set out to decipher the credibility/accuracy of those uploads by noting things like the serial numbers on munitions, and using online tools like Google Maps. While he was engaged in that exercise, he compared notes with people who were also trying to figure out what was accurate and what wasn’t–and in the process of  blogging about his efforts (under the alias “Brown Moses”)–he built a reputation as an “authority on a war too dangerous to be reported from the ground.”

In 2014 Higgins used Kickstarter to found Bellingcat (the name refers to resourceful mice tying a bell to a cat), a nonprofit, online collective dedicated to “a new field, one that connects journalism and rights advocacy and crime investigation.” Three days after its launch, a Malaysian passenger jet was shot down over the part of Ukraine held by Russian troops. Bellingcat proved the culprit was a Russian surface-to-air missile, by using largely the same array of tools—including Google Earth, the social media posts of Russian soldiers, and the passion of Eastern European drivers for posting dashcam videos—that hundreds of volunteer sleuths are now using to document the Russian invasion of Ukraine in granular detail.

It’s an extraordinary turn of events—and a striking reversal of fortunes for Vladimir Putin’s Russia, which in the past deployed disinformation so effectively in concert with its military that NATO refers to “hybrid war.” In Ukraine, however, Russia has been outflanked. Its attempts to establish a pretext for invasion by circulating video evidence of purported “atrocities” by Ukraine were exposed as frauds within hours by Bellingcat, fellow OSINT volunteers, and legacy news media outlets that have picked up reporting tools the open-source crowd hands around.

Higgins has written a book, We Are Bellingcat: An Intelligence Agency for the People, in which he describes–evidently in great detail–the time-consuming process needed  to produce an airtight case for the conclusions they reach. It was Bellingcat that ultimately assessed responsibility for the downing of Malaysian Airlines Flight 17–but it took a full year. In Ukraine, reporting has been much faster, thanks to what Higgins calls parallel team operations.

We’re also then setting up, at the moment, two teams. One is focused on more editorial, journalistic-type investigations, where you can get that stuff out quite quickly after the events have occurred. But another team that runs parallel to that is focused purely on doing investigations for accountability.

The importance of what Bellingcat is doing can be seen via a  CNN report on two videos that Russia circulated  before its invasion. The videos  purported to show  Ukrainian attacks. Both were exposed as frauds  by the online open-source community–and the network also cited its own analysis, using online geolocation methods pioneered by the open-source community, to prove that the videos had actually been filmed behind Russian lines.

The analytic tools developed by Bellingcat and other open-source detectives are now being used by a network composed of hundreds of nonprofessionals–and tools such as geolocation have saved open source analysts hundreds of hours of work. These new tools and the growing network of volunteer sleuths have undermined Russia’s once-masterful ability to spread propaganda. As Higgins says:

This is the first time I’ve really seen our side winning, I guess you could say. The attempts by Russia to frame the conflict and spread disinformation have just collapsed completely. The information coming out from the conflict—verified quickly, and used by the media, used by policymakers and accountability organizations—it’s completely undermined Russia’s efforts to build any kind of narrative around it, and really framed them as the aggressor committing war crimes.

The most important war currently being waged is the war against disinformation and propaganda–and open source intelligence is a new and very welcome weapon.

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Cheap Speech

Richard Hasen recently had a column–pardon me, a “guest essay”–in the New York Times. Hasen is a pre-eminent scholar of elections and electoral systems; whose most recent book is  “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It.”

In the “guest essay,” Hasen joins the scholars and pundits concerned about the negative consequences of so-called “fake news.”

The same information revolution that brought us Netflix, podcasts and the knowledge of the world in our smartphone-gripping hands has also undermined American democracy. There can be no doubt that virally spread political disinformation and delusional invective about stolen, rigged elections are threatening the foundation of our Republic. It’s going to take both legal and political change to bolster that foundation, and it might not be enough.

Hasen uses the term “cheap speech” in two ways. It’s an acknowledgement that the Internet has slashed the cost of promulgating all communications–credible and not. But it is also recognition that the information environment has become increasingly “cheap” in the sense of “favoring speech of little value over speech that is more valuable to voters.”

It is expensive to produce quality journalism but cheap to produce polarizing political “takes” and easily shareable disinformation. The economic model for local newspapers and news gathering has collapsed over the past two decades; from 2000 to 2018, journalists lost jobs faster than coal miners.

Hasen catalogues the various ways in which that collapse has undermined confidence in American institutions, especially government, and he points out that much “fake news” is not mere misinformation. but” deliberately spread disinformation, which can be both politically and financially profitable.”

Reading the essay, I thought back to Marshall McLuhan’s famous dictum that “the medium is the message.”  Hasen says that even if politics in the 1950s had been as polarized as they are today, it is highly unlikely that those division would have triggered the insurrection of Jan. 6th, and equally unlikely that millions of Republicans would believe phony claims about a “stolen” 2020 election. Social media has had a profoundly detrimental effect on democracy.

A democracy cannot function without “losers’ consent,” the idea that those on the wrong side of an election face disappointment but agree that there was a fair vote count. Those who believe the last election was stolen will have fewer compunctions about attempting to steal the next one. They are more likely to threaten election officials, triggering an exodus of competent election officials. They are more likely to see the current government as illegitimate and to refuse to follow government guidance on public health, the environment and other issues crucial to health and safety. They are comparatively likely to see violence as a means of resolving political grievances.

Hasen buttresses his argument with several examples of the ways cheap speech –and weakened political parties–damage democracy. His litany leaves us with a very obvious question: what can we do? Assuming the accuracy of his diagnosis, what is the prescribed treatment? Hasen gives us a list of his preferred fixes:  updating campaign finance laws so that they apply to what is now mostly unregulated political advertising disseminated over the internet; mandating the labeling of deep fakes as “altered;” and tightening the ban on foreign campaign expenditures, among others.

Congress should also make it a crime to lie about when, where and how people vote. A Trump supporter has been charged with targeting voters in 2016 with false messages suggesting that they could vote by text or social media post, but it is not clear if existing law makes such conduct illegal. We also need new laws aimed at limiting microtargeting, the use by campaigns or interest groups of intrusive data collected by social media companies to send political ads, including some misleading ones, sometimes to vulnerable populations.

He also acknowledges that such measures would be a hard sell to today’s Supreme Court, noting that much of the court’s jurisprudence depends upon faith in an arguably outmoded “marketplace of ideas” metaphor, which assumes that the truth will emerge through counter-speech.

If that was ever true in the past, it is not true in the cheap speech era. Today, the clearest danger to American democracy is not government censorship but the loss of voter confidence and competence that arises from the sea of disinformation and vitriol.

He argues that we need to find a way to subsidize real  journalism, especially local journalism, and that journalism bodies should use accreditation methods to signal which content is reliable and which is counterfeit. “Over time and with a lot of effort, we can reestablish greater faith in real journalism, at least for a significant part of the population.”

I would add a requirement that schools teach media literacy.

That said, how much of this is do-able is an open question.

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Fraud And Free Speech

A recent report from the Czech Republic made me think of Americans’ widespread misunderstandings about what constitutes the freedom of speech protected by the First Amendment.

The most widespread misunderstanding, of course, arises because too many Americans don’t realize that the Bill of Rights only limits actions by government. If Walmart refuses to carry your book, your private-sector boss forbids politicking on the job, or your racist Facebook diatribe causes people to unfriend you after characterizing you in unpleasant ways, those aren’t violations of the First Amendment. Those are examples of people exercising their free speech rights.

But about that Czech incident…

Prague Morning reported on the arrest of Jana Peterková. Peterkova became the first person to be convicted for spreading misinformation in the Czech Republic. According to court documents, she allegedly posted a false message claiming that several seniors died in a nursing home in Měšice after receiving COVID vaccinations.

Now, it is important to note that Peterkova posted a totally manufactured story. She wasn’t sharing an opinion, or weighing in on a disputed factual situation. She recounted a purportedly personal conversation with someone she identified as an employee of the nursing home in question, and she claimed that person had told her that “the ‘mainstream media’ were ‘silent’ after several elderly people died after receiving the Pfizer COVID-19 vaccine.”

However, the identified employee had not worked at the nursing home since May of 2020.

It is also important to acknowledge that the Czech Republic doesn’t have America’s First Amendment, although it has pretty robust protections for free speech. (Wikipedia says “Freedom of speech in the Czech Republic is guaranteed by the Czech Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Czech Constitution. It is the first freedom of the charter’s second division – political rights.”)

One of the conundrums of America’s free speech jurisprudence is locating the line between  speech–communication–and action. Government may not be able to censor my speech, but it definitely has the right to prohibit and punish a number of my possible actions.

And just as communication can occur through action–silent marches, ripping up draft cards, and burning a flag are all actions meant to send a message–wrongful or criminal behaviors can be accomplished via the spoken or written word.

If I call your telephone every fifteen minutes to berate you for something, that behavior is not protected by the First Amendment. It isn’t communication; it’s harassment–and government can punish harassment.

If I criticize you by publishing a book with manufactured accusations, I’ve committed libel. Government can prohibit libel and slander.

If I sell you a cubic zirconium for much more than it’s worth by convincing you it’s a diamond, I’m not exercising my right to free speech; I’m guilty of fraud. Government can punish fraud.

The problem in these situations isn’t that they’re protected speech; it’s evidentiary.

If a police officer overhears two people planning to rob a liquor store, he doesn’t need to wait until they’re at the store with weapons drawn to move against them–but he’d better be able to demonstrate to a court of law that he knew they were serious–that what he overheard was part of the illegal activity–that they weren’t just playing a game, or kidding around.

In the case from the Czech Republic, the evidence was evidently unambiguous. The information Peterkova transmitted was false and she clearly knew it was false, since she’d invented it.

Most of the propaganda being spewed in today’s U.S. is protected by the Free Speech Clause of the First Amendment. Opinions–no matter how nutty–are protected, and far too much of what passes for journalism in this country today, even in the most credible outlets,  is really the venting of opinions. Even though a number of Faux News pundits and their ilk likely know they are dealing in a manufactured reality, proving to a court that they know they are dealing in falsehoods–at least, in the absence of some inadvertent admission– would be impossible.

Overall, the protection offered by the First Amendment is immensely positive. That said, however, the reality of our time is that “censorship” is no longer accomplished by suppression; today, partisans and culture warriors flood the Information environment with enormous amounts of clickbait and propaganda, intended to “drown out” responsible fact-finding, then use the First Amendment as a shield.

it’s a situation that requires a citizenry able to separate wheat from chaff. Civic and news literacy have never been more important.

Unfortunately, the ideologies that motivate the propaganda in the first place also convince partisans that “truth” is information that confirms their initial biases–and increasingly, that illegal and/or illegitimate action–even insurrection– is protected “free speech.”

it isn’t.

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